no. 18-10151 · northern district of alabama, no. 2:15-cv-02193-lsc brief of the states of indiana,...

No. 18-10151

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

GREATER BIRMINGHAM MINISTRIES, ALABAMA STATE

CONFERENCE OF THE NATIONAL ASSOCIATION FOR THE

ADVANCEMENT OF COLORED PEOPLE, GIOVANA AMBROSIO,

ELIZABETH WARE, SHAMEKA HARRIS,

Plaintiffs- Appellants,

v.

SECRETARY OF STATE FOR THE STATE OF ALABAMA,

Defendant-Appellee,

On Appeal from the United States District Court for the

Northern District of Alabama, No. 2:15-CV-02193-LSC

BRIEF OF THE STATES OF INDIANA, ARKANSAS, COLORADO,

IDAHO, KANSAS, LOUISIANA, MICHIGAN, NORTH DAKOTA

OKLAHOMA, SOUTH CAROLINA, AND TEXAS AS AMICI CURIAE IN

SUPPORT OF DEFENDANT-APPELLEE AND IN SUPPORT OF

AFFIRMANCE

Office of the Attorney General

302 West Washington Street

IGCS 5th Floor

Indianapolis, Indiana 46204

(317) 232-6255

(317) 232-7979

[email protected]

Counsel for Amici States

*Not admitted to the Eleventh

Circuit

CURTIS T. HILL, JR.*

Attorney General of Indiana

THOMAS M. FISHER

Solicitor General

MATTHEW R. ELLIOTT*

LARA LANGENECKERT*

JULIA C. PAYNE*

Deputy Attorneys General

(Additional counsel listed with signature block)

Case: 18-10151 Date Filed: 04/06/2018 Page: 1 of 36

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CERTIFICATE OF INTERESTED PERSONS AND CORPORATE

DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1 and Eleventh Circuit

Rule 26.1-1, the undersigned counsel of record states that amici states do not have

parent corporations, nor have they issued shared or debt securities to the public. The

amici states are not subsidiaries or affiliates of any publicly owned corporation, and

no publicly held corporation holds ten percent of their stock. The undersigned

counsel of record also makes the following disclosure of interested parties, in

addition to the individuals and entities listed in Plaintiffs-Appellants’ Opening Brief

and other briefs because the following individuals have an interest in the outcome of

this appeal:

1. Fisher, Thomas M. – Counsel for Amicus Curiae State of Indiana, et al.

2. Hill, Curtis T. – Attorney General of Indiana

3. Rutledge, Leslie – Attorney General of Arkansas

4. Coffman, Cynthia H. – Attorney General of Colorado

5. Wasden, Lawrence G. – Attorney General of Idaho

6. Schmidt, Derek – Attorney General of Kansas

7. Landry, Jeff – Attorney General of Louisiana

8. Schuette, Bill – Attorney General of Michigan

9. Wayne Stenehjem – Attorney General of North Dakota

10. Hunter, Mike – Attorney General of Oklahoma

11. Wilson, Alan – Attorney General of South Carolina

12. Paxton, Ken – Attorney General of Texas

13. State of Arkansas

14. State of Colorado

15. State of Idaho

16. State of Indiana

17. State of Kansas

18. State of Louisiana


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19. State of Michigan

20. State of North Dakota

21. State of Oklahoma

22. State of South Carolina

23. State of Texas

s/Thomas M. Fisher Thomas M. Fisher

Attorney of record for Amicus

Curiae State of Indiana, et al.


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TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS AND CORPORATE

DISCLOSURE STATEMENT .............................................................................. i

TABLE OF AUTHORITIES ............................................................................... iv

AMICI’S STATEMENT OF IDENTITY AND INTEREST ................................ 1

SUMMARY OF THE ARGUMENT .................................................................... 3

ARGUMENT ......................................................................................................... 6

I. Crawford Declared Voter Photo ID Laws Facially Valid and

Controls Here .................................................................................................... 6

A. Crawford held that compelling state interests justified any

minimal burden imposed by Indiana’s voter ID law .............................. 6

B. This Court properly applied Crawford to Georgia’s voter ID

Law in Billups, as did the Seventh Circuit in Frank .............................. 9

C. Alabama’s law permits additional types of IDs and provides

even more ways for voters to obtain IDs than Indiana or

other states ............................................................................................11

D. Federalism requires a presumption of validity and good faith .............13

II. Plaintiffs’ VRA Section 2 Claim Must Fail Because the Alabama

Photo ID Law Permits the Same Opportunities for Everyone .......................18

A. Plaintiffs seek to apply an incorrect test for their VRA

Section 2 claim .....................................................................................18

B. Alabama’s Photo ID Law does not violate VRA Section 2 .................23

CONCLUSION ....................................................................................................25

CERTIFICATE OF SERVICE ............................................................................27

CERTIFICATE OF COMPLIANCE ...................................................................28


iv

TABLE OF AUTHORITIES

CASES

Abrams v. Johnson,

521 U.S. 74 (1997) ........................................................................................ 18, 19

Anderson v. Celebrezze,

460 U.S. 780 (1983) .............................................................................................. 6

Bartlett v. Strickland,

556 U.S. 1 (2009) ................................................................................................ 18

Burdick v. Takushi,

504 U.S. 428 (1992) ........................................................................................ 8, 24

City of Mobile, Ala. v. Bolden,

446 U.S. 55 (1980) .............................................................................................. 15

Common Cause/Georgia v. Billups,

554 F.3d 1340 (11th Cir. 2009) .................................................................. 4, 9, 11

Crawford v. Marion County Election Board,

553 U.S. 181 (2008) .....................................................................................passim

Edwards v. Aguillard,

482 U.S. 578 (1987) ............................................................................................ 15

Fletcher v. Peck,

6 Cranch 87 (1810) ............................................................................................... 6

Frank v. Walker,

768 F.3d 744 (7th Cir. 2014) .......................................................................passim

Gonzalez v. Arizona,

677 F.3d 383 (9th Cir. 2012) (en banc), aff’d on other grounds sub

nom. Arizona v. InterTribal Council of Ariz., Inc.,

133 S. Ct. 2247 (2013) .................................................................................. 20, 21

Johnson v. Governor of State of Fla.,

405 F.3d 1214 (11th Cir. 2005) .................................................................... 19, 20


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CASES [CONT’D]

Lee v. Virginia State Board of Elections,

843 F.3d 592 (4th Cir. 2016) ........................................................................ 21, 22

Miller v. Johnson,

515 U.S. 900 (1995) ............................................................................................ 14

Mueller v. Allen,

463 U.S. 388 (1983) ............................................................................................ 15

N.C. State Conf. of the NAACP v. McCrory,

831 F.3d 204 (4th Cir. 2016) ............................................................ 12, 17, 21, 22

Nipper v. Smith,

39 F.3d 1494 (11th Cir. 1994) ............................................................................ 20

Ohio Democratic Party v. Husted,

834 F.3d 620 (6th Cir. 2016) .............................................................................. 20

Palmer v. Thompson,

403 U.S. 217 (1971) ............................................................................................ 16

Rogers v. Lodge,

458 U.S. 613 (1982) ............................................................................................ 19

San Antonio Indep. Sch. Dist. v. Rodriguez,

411 U.S. 1 (1973) ................................................................................................ 14

Smiley v. Holm,

285 U.S. 355 (1932) ........................................................................................ 2, 16

Storer v. Brown,

415 U.S. 724 (1974) .......................................................................................... 2, 3

Sunday Lake Iron Co. v. Wakefield Tp.,

247 U.S. 350 (1918) ............................................................................................ 15

Thornburg v. Gingles,

478 U.S. 30 (1986) .............................................................................................. 19

Twp. of Pine Grove v. Talcott,

86 U.S. 666 (1873) .............................................................................................. 14


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CASES [CONT’D]

United States v. Dallas Cty. Comm’n,

739 F.2d 1529 (11th Cir. 1984) .......................................................................... 19

United States v. Marengo Cty. Comm’n,

731 F.2d 1546 (11th Cir. 1984) .................................................................... 19, 24

Veasey v. Abbott,

830 F.3d 216 (5th Cir. 2016) (en banc) ........................................................ 12, 22

Vill. of Arlington Heights v. Metro. Hous. Dev. Corp.,

429 U.S. 252 (1977) ............................................................................................ 16

Wallace v. Jaffree,

472 U.S. 38 (1985) (O’Connor, J., concurring in the judgment) ....................... 15

Walters v. Nat’l Ass’n of Radiation Survivors,

473 U.S. 305 (1985) ............................................................................................ 14

STATE STATUTES

Ala. Code § 17-9-30 ............................................................................................... 1, 3

Ala. Code § 17-9-30(a) ...................................................................................... 12, 24

Ala. Code § 17-9-30(e) ............................................................................................ 13

Ala. Code § 17-9-30(f) ............................................................................................. 12

Ala. Code § 17-9-30(j) ............................................................................................. 12

Ga. Code Ann. § 21-2-417 ......................................................................................... 1

Ind. Code § 3-5-2-40.5 ............................................................................................... 1

Kan. Stat. Ann. § 25-1122 ......................................................................................... 1

Kan. Stat. Ann. § 25-2908 ......................................................................................... 1

Miss. Code Ann. § 23-15-563 .................................................................................... 1

Tenn. Code Ann. § 2-7-112 ....................................................................................... 1

Tex. Elec. Code § 63.001 et seq. ................................................................................ 1


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STATE STATUTES [CONT’D]

Va. Code Ann. § 24.2-643(B) .................................................................................... 1

Wis. Stat. § 5.02(6)(m) .............................................................................................. 1

Wis. Stat. § 6.79(2)(a) ................................................................................................ 1

Wis. Stat. § 6.79(3)(b) ................................................................................................ 1

OTHER AUTHORITIES

The Federalist No. 59 (Alexander Hamilton) (Modern Library Coll.

ed. 2000) ............................................................................................................... 3

F. Andrew Hessick, Rethinking the Presumption of Constitutionality,

85 Notre Dame L. Rev. 1447 (2010) .................................................................. 14

Andrew P. Miller & Mark A. Packman, Amended Section 2 of the

Voting Rights Act: What Is the Intent of the Results Test?, 36

Emory L.J. 1 (1987) ............................................................................................ 19

Jeffrey Milyo, Inst. of Pub. Policy Report No. 10-2007, The Effects of

Photographic Identification on Voter Turnout in Indiana: A

County-Level Analysis (Nov. 2007) .................................................................. 8, 9

S. Rep. No. 97-417 (1982) ....................................................................................... 19

U.S. Const. art. I, § 4 ............................................................................................ 2, 16

Voter Identification Requirements/Voter ID Laws, National

Conference of State Legislatures (Jan. 5, 2018),

http://www.ncsl.org/research/elections-and-campaigns/voter-

id.aspx#Details ...................................................................................................... 1


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AMICI’S STATEMENT OF IDENTITY AND INTEREST

Amici curiae, the States of Indiana, Arkansas, Colorado, Idaho, Kansas,

Louisiana, Michigan, North Dakota, Oklahoma, South Carolina, and Texas, file this

brief in support of Defendant-Appellee Secretary of State for the State of Alabama

as a matter of right pursuant to Federal Rule of Appellate Procedure 29(a).

A total of 34 States have laws requiring or requesting voters to show some

form of documentary identification before voting in person. Voter Identification

Requirements/Voter ID Laws, National Conference of State Legislatures

(Jan. 5, 2018), http://www.ncsl.org/research/elections-and-campaigns/voter-id.aspx

#Details. These laws vary greatly, with some States requiring photo identification

and other States accepting various forms of non-photo identification.

At least eight States (including Alabama) require in-person voters to present

photo identification and, if they are unable to do so, to cast a provisional ballot that

they must take steps to validate after Election Day. See Ala. Code § 17-9-30; Ga.

Code Ann. § 21-2-417; Ind. Code § 3-5-2-40.5; Kan. Stat. Ann. §§ 25-2908, 25-

1122; Miss. Code Ann. § 23-15-563; Tenn. Code Ann. § 2-7-112; Tex. Elec. Code

§ 63.001 et seq.; Va. Code Ann. § 24.2-643(B); Wis. Stat. §§ 5.02(6)(m), 6.79(2)(a),

(3)(b). Of these laws, five (including Alabama’s) were enacted after—and in reliance

upon—Crawford v. Marion County Election Board, 553 U.S. 181 (2008), which

upheld Indiana’s voter ID law and affirmed the facial validity of such laws.


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The amici States have a compelling interest in the continued vitality of

Crawford and the guidance it provides. Lower court decisions that would allow each

new plaintiff to come forward with purportedly new evidence regarding the

supposed impact of a voter ID law and invite the court to re-weigh competing

interests both undermine Crawford and create uncertainty for States attempting to

enforce or enact voter ID laws.

The amici States also have a compelling interest in maintaining a sensible

standard for the application of Section 2 of the Voting Rights Act to right-to-vote

abridgement claims. Lower court decisions that would allow succeeding plaintiffs

to come forward with new theories about the hypothetical impact of voter ID laws

and invite courts to re-weigh competing governmental interests both undermine

Crawford and stretch Section 2 well beyond its traditional scope. In the process, such

decisions create unnecessary legal uncertainty for all voter ID laws. The amici States

have an interest in ensuring that their election reforms are not undermined absent

concrete evidence of racially discriminatory impact or purpose.

More generally, the amici States are interested in ensuring that States retain

their full authority under the Elections Clause, U.S. Const. art. I, § 4, to enact

comprehensive election laws to “enforce the fundamental right” to vote by

“prevent[ing] . . . fraud and corrupt practices.” Smiley v. Holm, 285 U.S. 355, 366

(1932); see also Storer v. Brown, 415 U.S. 724, 730 (1974) (“[A]s a practical matter,


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there must be a substantial regulation of elections if they are to be fair and honest

and if some sort of order, rather than chaos, is to accompany the democratic

processes.”). States’ discretionary legislative authority over elections is important

because no “election law could have been framed and inserted in the Constitution,

which would have been always applicable to every probable change in the situation

of the country[.]” The Federalist No. 59, at 379 (Alexander Hamilton) (Modern

Library Coll. ed. 2000).

Voter ID laws such as Alabama’s Photo ID Law and the Indiana law upheld

in Crawford represent reasonable, nondiscriminatory exercises of Elections Clause

authority that take account of the need to modernize election procedures, just as the

Founders envisioned. Federalist No. 59, supra, at 379. The amici States have an

interest in ensuring that such authority is not undermined by judicial decisions that

would grant voter ID opponents repeated opportunities to facially attack election

laws that have already been deemed valid.

SUMMARY OF THE ARGUMENT

In 2008, the Supreme Court upheld Indiana’s voter ID law, which requires

citizens voting in person to present government-issued photo identification before

casting their ballots. Crawford v. Marion Cnty. Election Bd., 553 U.S. 181 (2008).

In upholding the legitimacy of Alabama’s Photo Voter Identification Law, Act No.

2011-673, codified at Ala. Code § 17-9-30 (“Photo ID Law”), the district court relied


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heavily on Crawford in concluding that “it is so easy to get a photo ID in Alabama,

no one is prevented from voting.” Appendix, Vol. 7 (“7 App.”) at 232 (emphasis in

original). The district court’s decision should be affirmed.

Crawford confirmed the facial validity of voter ID laws generally. It held, as

a matter of law, that voter ID laws serve compelling state interests in deterring fraud,

maintaining public confidence in the electoral system, and promoting accurate

record-keeping. As this court and the Seventh Circuit both recognized in post-

Crawford decisions, if this is true in Indiana, then it must be true in every other State.

Common Cause/Georgia v. Billups, 554 F.3d 1340, 1352–54 (11th Cir. 2009)

(upholding Georgia’s voter ID law); Frank v. Walker, 768 F.3d 744, 750 (7th Cir.

2014) (upholding Wisconsin’s voter ID law). Billups controls, and Frank provides a

useful template when it comes to applying Crawford to follow-on voter ID

challenges in other States.

Moreover, just as the plaintiffs in Crawford failed to develop a record

quantifying any substantial burden on the State’s registered voters, so, too, have the

plaintiffs here failed to show such a burden on Alabama voters—let alone any

disparate impact on minorities. They argue that some voters will be burdened more

significantly by the Alabama Photo ID requirement than others, but provide only

scant evidence of any such supposed burden. Rather, plaintiffs rely on possession

rates of compliant IDs without adequately considering the ease of any citizen to


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obtain one. Appellant’s Br. 35. This failure to prove that the statute imposes

“‘excessively burdensome requirements’ on any class of voters,” Crawford, 553

U.S. at 202 (citation omitted), should prove as fatal to the plaintiffs’ claims in this

case as it did in Crawford, especially as Alabama’s Photo ID Law is even less

burdensome than Indiana’s or Wisconsin’s.

Section 2 of the Voting Rights Act does not provide a viable alternative to

attack State voter ID laws based solely on inferences from data whose relationship

to the actual impact of those laws is highly attenuated. For example, as the Seventh

Circuit cautioned in Frank, it cannot (and should not) be true “that if whites are 2%

more likely to register than are blacks, then the registration system top to bottom

violates § 2; and if white turnout on election day is 2% higher, then the [electoral

reform] violates § 2.” Frank, 768 F.3d at 754.

Plaintiffs claim it is error not to apply the “Senate factors”—which were

intended to help courts evaluate claims of vote dilution—to voter ID laws. The

“Senate factors,” however, are particularly unsuited to vote-abridgement claims, as

illustrated by the Sixth, Seventh, and Ninth Circuits’ decisions declining to apply

them when plaintiffs failed to make a threshold showing of discriminatory result.

Rather, under a straightforward application of the text of Section 2, Alabama’s Photo

ID Law neither disparately affects minority voters nor deprives minority voters (or

anyone) of an equal opportunity to participate in the electoral process.


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ARGUMENT

I. Crawford Declared Voter Photo ID Laws Facially Valid and Controls Here

The Supreme Court affirmed the facial validity of voter photo ID laws a

decade ago in Crawford v. Marion County Election Board, 553 U.S. 181 (2008), and

there is no reason to depart from that holding here. As the district court recognized,

Crawford confirms Alabama’s compelling purpose for the law—to combat voter

fraud, increase voter confidence, and modernize elections. 7 App. 228. And because

Alabama’s law permits voters to use more types of photo ID, provides more

convenient ways to obtain acceptable ID, and makes it easier to vote without an ID

than the Indiana law upheld in Crawford, Alabama’s law must perforce be valid.

A. Crawford held that compelling state interests justified any minimal

burden imposed by Indiana’s voter ID law

Crawford upheld Indiana’s voter ID law by a vote of 6 to 3. Justice Stevens

authored the lead opinion, which Chief Justice Roberts and Justice Kennedy joined.

Justice Scalia wrote a concurring opinion, joined by Justices Thomas and Alito.

Justice Stevens’ opinion applied the balancing test set forth in Anderson v.

Celebrezze, 460 U.S. 780 (1983), which “weigh[s] the asserted injury to the right to

vote against the ‘precise interests put forward by the State as justifications for the

burden imposed by its rule.’” Crawford, 553 U.S. at 190 (quoting Anderson, 460

U.S. at 789). In applying the Anderson balancing test, the Crawford plurality

observed that, while the record contained no evidence of in-person voter fraud


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occurring in Indiana, historical examples of such fraud exist throughout the Nation.

The plurality credited both the need to deter such fraud and the need to safeguard

voter confidence, concluding “[t]here is no question about the legitimacy or

importance of the State’s interest in counting only the votes of eligible voters.” Id.

at 194–96. “Moreover,” said the plurality, “the interest in orderly administration and

accurate recordkeeping provides a sufficient justification for carefully identifying all

voters participating in the election process.” Id. at 196.

As for the law’s supposed burdens, the plurality observed that, “[f]or most

voters who need [photo identification], the inconvenience of making a trip to the

BMV, gathering the required documents, and posing for a photograph surely does

not qualify as a substantial burden on the right to vote[.]” Id. at 198. And while the

law might impose a “somewhat heavier burden” on a limited number of persons, the

severity of that burden was mitigated by the ability of otherwise eligible voters to

cast provisional ballots or, in some circumstances, to vote absentee. Id. at 199–201.

Finally, the plurality noted the shortcomings of the record, which identified not a

single individual who would be prevented from voting as a result of the voter ID

law. Id. at 200–01. “The ‘precise interests’ advanced by the State [we]re therefore

sufficient to defeat petitioners’ facial challenge to [Indiana’s voter ID law].” Id. at

203 (citation omitted).


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Justice Scalia’s concurring opinion, on the other hand, applied the approach

set out in Burdick v. Takushi, 504 U.S. 428 (1992), which “calls for application of a

deferential ‘important regulatory interests’ standard for nonsevere,

nondiscriminatory restrictions, reserving strict scrutiny for laws that severely restrict

the right to vote.” Crawford, 553 U.S. at 204 (Scalia, J., concurring) (quoting

Burdick, 504 U.S. at 433–34). Under Burdick, Justice Scalia explained, courts must

consider the challenged law and its “reasonably foreseeable effect on voters

generally.” Id. at 206.

Notably, even Justice Breyer, in dissent, credited Indiana’s legitimate need

“to prevent fraud, to build confidence in the voting system, and thereby to maintain

the integrity of the voting process.” Id. at 237 (Breyer, J., dissenting). He

acknowledged that the Constitution does not guarantee everyone a cost-free voting

process and dissented only because Indiana’s law lacked features of an ideal voter

ID law that could conceivably burden fewer voters. See id. at 237–40.

Multiple studies analyzing data collected not long after the implementation of

Indiana’s voter ID law confirm the Crawford Court’s conclusion that the law does

not impose any “excessively burdensome requirements” on voters. Crawford, 553

U.S. at 202 (internal quotation omitted). To the contrary, after Indiana’s voter ID

law went into effect “[o]verall, voter turnout in Indiana increased about two

percentage points[.]” Jeffrey Milyo, Inst. of Pub. Policy Report No. 10-2007, The


9

Effects of Photographic Identification on Voter Turnout in Indiana: A County-Level

Analysis 1 (Nov. 2007) (emphasis added). Most importantly here, “there is no

consistent evidence that counties that have higher percentages of minority, poor,

elderly or less-educated population suffer any reduction in voter turnout relative to

other counties.” Id. at Abstract.

B. This Court properly applied Crawford to Georgia’s voter ID Law in

Billups, as did the Seventh Circuit in Frank

This court, adhering to Supreme Court precedent in Crawford, upheld

Georgia’s voter photo ID law and held that combating voter fraud and preserving

the integrity of the State’s election system are “weighty interests” and serve a

legitimate purpose. Common Cause/Georgia v. Billups, 554 F.3d 1340, 1352–53

(11th Cir. 2009) (citing Crawford, 553 U.S. at 192–97). This court also recognized

“[t]he ordinary burdens of producing a photo identification to vote, which the

Supreme Court described as ‘arising from life’s vagaries,’ do not ‘raise any question

about the constitutionality of’ the Georgia statute.”). Id. at 1354–55 (quoting

Crawford, 553 U.S. at 197).

Similarly, the Seventh Circuit demonstrated how to apply Crawford to other

states in Frank v. Walker, 768 F.3d 744 (7th Cir. 2014), where it upheld Wisconsin’s

voter ID Law. Notably, the court faulted the plaintiffs for failing to provide evidence

regarding the number of voters who would be unable to obtain photo IDs. It held

that the number of registered voters who lack acceptable photo ID on a particular


10

day carries no legal significance under Crawford. Id. at 748–49. It explained that

registered voters who lack photo ID could not claim to be “disenfranchised” because

the State had in no way made it “impossible, or even hard” for them to get photo ID.

Id. at 748. “[I]f photo ID is available to people willing to scrounge up a birth

certificate and stand in line at the office that issues drivers’ licenses, then all we

know from the fact that a particular person lacks a photo ID is that he was unwilling

to invest the necessary time.” Id. In fact, said the court, many of the district court’s

findings “support the conclusion that for most eligible voters not having a photo ID

is a matter of choice rather than a state-created obstacle.” Id. at 749.

In terms of government objectives, the Seventh Circuit chastised the district

judge for finding “as a fact that the majority of the Supreme Court was wrong” about

the benefits of voter ID, including deterring fraud, preserving voter confidence, and

maintaining accurate records. Id. at 750. The legitimate purposes behind voter ID

laws that the Supreme Court recognized in Crawford are now matters of legislative

fact—“a proposition about the state of the world, as opposed to a proposition about

these litigants or about a single state.” Id.

In short, “[p]hoto ID laws promote confidence, or they don’t; there is no way

they could promote public confidence in Indiana (as Crawford concluded) and not

in Wisconsin. This means they are valid in every state . . . or they are valid in no

state.” Id. And “[t]he insignificant burden imposed by the Georgia [voter ID] statute


11

is outweighed by the interests in detecting and deterring voter fraud.” Billups, 554

F.3d at 1354.

C. Alabama’s law permits additional types of IDs and provides even

more ways for voters to obtain IDs than Indiana or other states

Like the Georgia, Wisconsin and Indiana plaintiffs, the Alabama plaintiffs

here have failed to develop a record quantifying any substantial burden on the State’s

registered voters—let alone any discriminatory impact on minorities. In fact, there

is no reason to expect that Alabama’s Photo ID law will somehow cause substantial

harm to voter participation or disproportionally affect minorities, when nothing of

the sort has happened in over ten years of voter ID in Indiana. Accordingly,

Crawford compels validation of Alabama’s Photo ID law, which is less burdensome

than Georgia’s, Indiana’s, or Wisconsin’s.

Indeed, as in Crawford, Plaintiffs here have failed to show how the Alabama

Photo ID law would prevent a significant number of voters from obtaining

acceptable ID and voting. Though the individual Plaintiffs did describe their

experiences obtaining an ID, the district court read these descriptions to mean “that

people who want a photo ID can get one.” 7 App. 237. For example, one voter knew

about the Secretary’s mobile unit and was able to travel for activities, work, and

make a 25-30 minute trip for college classes but still claimed she could not get to a

registrar’s office a mile from her house. ECF No. 236 at ¶¶ 242-251. This same voter


12

was ultimately able to obtain an ID and register for the 2016 general election, despite

registering too late to vote in the 2016 primaries. Id.

Several other voters were able to obtain acceptable IDs for voting or other

functions despite claims it would cause difficulty. ECF No. 236 at ¶¶ 223-241. In

fact, Plaintiffs’ expert demonstrated that only 1.67% of registered Alabama voters

lacked an acceptable ID. ECF No. 235-1 at 31.

That is likely because several significant aspects of Alabama’s Photo ID law

make it easy for voters to obtain acceptable ID and thus ameliorate any potential for

negative impact. First, Alabama permits many different forms of identification at the

polls. While courts have criticized other states such as Texas and North Carolina for

not accepting student IDs, military IDs, and government employee IDs, N.C. State

Conf. of the NAACP v. McCrory, 831 F.3d 204, 236 (4th Cir. 2016); Veasey v.

Abbott, 830 F.3d 216, 262 (5th Cir. 2016) (en banc), Alabama permits voters to use

any of those forms of ID. Ala. Code § 17-9-30(a) (listing seven specific categories

of valid photo IDs including student IDs, military IDs, and government employee

IDs).

Next, Alabama provides multiple ways to obtain acceptable ID, minimizing

any supposed burdens put forward by Plaintiffs. The Secretary of State may issue

valid voter ID cards at no cost. Ala. Code § 17-9-30(f). Voters need only provide

specified information, see Ala. Code § 17-9-30(j), that can be proved by presenting


13

documents such as a birth or marriage certificate and something with the voter’s

name and address on it, such as a utility bill or a pay stub. And if even that is too

difficult, the applicant may sign a voter registration form under oath, thereby

confirming the voter’s identity. ECF No. 236 ¶¶170-172. And if getting to the

registrar’s office to obtain an ID is too difficult, Secretary Merrill’s office mobile

unit will come to the voter’s home and issue a photo ID. ECF No. 236 ¶¶ 184-193.

Alabama also allows a voter without the required photo ID to cast a regular

ballot if two election officials present at the polling place positively identify that

person as eligible to vote and sign an affidavit attesting to the voter’s identity. Ala.

Code § 17-9-30(e). There is no such procedure available in Indiana, Georgia,

Wisconsin, or Virginia—yet courts have upheld all of those States’ voter ID laws.

When compared with Indiana and other states, then, Alabama’s voter ID law

is unquestionably easier for voters to satisfy. Hence, if Indiana’s law did not impose

a substantial burden on voting, Alabama’s law cannot either.

D. Federalism requires a presumption of validity and good faith

Plaintiffs seek to escape Crawford by asserting an intentional race

discrimination theory, but federalism and comity require a presumption of good

faith. And in all events, neither the history of nor the burdens imposed by the law

suggest any discrimination.


14

1. As a matter of federalism, it is proper to accord the Alabama Photo ID

law a presumption that the legislature acted in good faith and without a

discriminatory purpose. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1,

44 (1973) (“Questions of federalism are always inherent in the process of

determining whether a State’s laws are to be accorded the traditional presumption of

constitutionality[.]”); see also F. Andrew Hessick, Rethinking the Presumption of

Constitutionality, 85 Notre Dame L. Rev. 1447, 1463 (2010) (noting that judicial

“respect for state legislatures rests on the federalism principles that the federal

judiciary should not unduly interfere with the state governments[.]”).

What is more, the presumptions of validity and legislative good faith should

be at their weightiest when the law at issue governs elections—over which states

have traditionally had full authority. See, e.g., Miller v. Johnson, 515 U.S. 900, 916

(1995) (noting, in the redistricting context, “the presumption of good faith that must

be accorded legislative enactments”).

While the legal principle that a statute enacted by the people’s elected state

legislators is presumed to be valid is centuries old, see Twp. of Pine Grove v. Talcott,

86 U.S. 666, 673 (1873) (“Every doubt is to be resolved in support of the

enactment.”), it still remains relevant in the modern era. Walters v. Nat’l Ass’n of

Radiation Survivors, 473 U.S. 305, 319 (1985) (noting the “deference than we

customarily must pay to the duly enacted and carefully considered decision of a


15

coequal and representative branch of our Government”); City of Mobile, Ala. v.

Bolden, 446 U.S. 55, 76 n.23 (1980) (plurality) (noting “[t]he presumption of

constitutional validity that underlies the settled mode of reviewing legislation”).

With regard to the presumption afforded legislators, courts presume that the

people’s elected representatives act in good faith and in the best interest of their

constituents, and the burden is on the party alleging bad faith to prove up its claim.

Sunday Lake Iron Co. v. Wakefield Tp., 247 U.S. 350, 353 (1918) (“The good faith

of such [state] officers and the validity of their actions are presumed; when assailed,

the burden of proof is upon the complaining party.”) (internal citation omitted). And

a court must accept a legislature’s stated purpose as genuine unless there is clear

evidence that it is pretextual. Edwards v. Aguillard, 482 U.S. 578, 586 (1987)

(“[T]he Court is normally deferential to a State’s articulation of . . . purpose[.]”);

Mueller v. Allen, 463 U.S. 388, 394–95 (1983) (noting a “reluctance to attribute

unconstitutional motives to the states, particularly when a plausible . . . purpose for

the state’s program may be discerned from the face of the statute”); see also Wallace

v. Jaffree, 472 U.S. 38, 74 (1985) (O’Connor, J., concurring in the judgment) (“[T]he

inquiry into the purpose of the legislature . . . should be deferential and limited.”).

Here, the Court should afford the presumptions to the Alabama legislature and

the challenged law to ensure protection of States’ full authority under the Elections


16

Clause, U.S. Const. art. I, § 4, to enact comprehensive election laws. Smiley v. Holm,

285 U.S. 355, 366 (1932).

2. The minimal burden imposed by voter ID laws should negate the

intentional discrimination argument as well. Plaintiffs urge this Court to consider

only discriminatory intent, Appellants’ Br. 33–35, but as the district court correctly

observed, Plaintiffs must also show the Photo ID Law has a discriminatory effect—

that it “actually discriminates on the basis of race”—to prevail on their Fourteenth

and Fifteenth Amendment claims. Palmer v. Thompson, 403 U.S. 217, 224 (1971)

(“[N]o case in this Court has held that a legislative act may violate equal protection

solely because of the motivations of the men who voted for it.”) (citing Fletcher v.

Peck, 6 Cranch 87 (1810)); see also Vill. of Arlington Heights v. Metro. Hous. Dev.

Corp., 429 U.S. 252, 266 (1977) (“The impact of the official action whether it ‘bears

more heavily on one race than another,’ . . . may provide an important starting point.”

(citation omitted)).

To be sure, Arlington Heights outlined other factors that may bear on

intentional discrimination, but they do not help Plaintiffs here. For example, “[t]he

historical background of the decision[,]” Arlington Heights, 429 U.S. at 267, weighs

in favor of Alabama, which passed its Photo ID Law in 2011, i.e., after both

Crawford and Billups, both of which cases recognized the significant interests States

have in enacting such photo ID laws. Next, Alabama proved documented cases of


17

voter fraud in that state. ECF No. 236 ¶¶ 3-23, 28-33, 59-104. Third, other elected

public officials, including former Secretary of State Jim Bennett and Attorney

General Bill Pryor, historically supported voter identification laws in two decades

prior to its passage. ECF No. 236 ¶¶ 27-30. Lastly, the Clerk of the Alabama House

of Representative and the Secretary of the Alabama Senate both confirmed that there

was nothing unusual in the way that the Photo ID Law was passed. ECF No. 236 ¶¶

114-116.

Much of Plaintiffs’ purported evidence, including the change in office hours

for issuance of drivers’ licenses and the Secretary of State’s decision not to

promulgate regulations until 2013, see ECF No. 112 at ¶¶ 76-81, 119-122, occurred

well after Alabama passed its Photo ID Law in 2011. It is therefore readily

distinguishable from the evidence in N.C. State Conf. of the NAACP v. McCrory,

831 F.3d 204, 214 (4th Cir. 2016), which showed that, before the North Carolina

legislature enacted the law, it requested data “on the use, by race, of a number of

voting practices[,]” id. at 214, and used this data in “swiftly” enacting legislation

“that restricted voting and registration in five different ways, all of which

disproportionately affected African Americans.” Id. at 214, 216.

***

Plaintiffs are not the first organization to challenge the constitutionality of

voter ID law, (see Crawford, Billups, and Frank), and they are unlikely to be the


18

last. But such attacks on States’ mechanisms for deterring fraud and maintaining

public confidence in the electoral system—irrespective of what constitutional

grounds are invoked—are nothing more than the same assault on States’ authority

to enact comprehensive election laws. Notwithstanding the presumption of good

faith accorded to states by principles of federalism and comity, the Alabama

plaintiffs here have failed to develop a record quantifying any substantial burden on

the State’s registered voters—let alone any discriminatory impact on minorities.

II. Plaintiffs’ VRA Section 2 Claim Must Fail Because the Alabama Photo ID

Law Permits the Same Opportunities for Everyone

A. Plaintiffs seek to apply an incorrect test for their VRA Section 2 claim

Under a straightforward application of the text of Section 2, Plaintiffs’ Section

2 claim must fail because Alabama’s Photo ID Law neither disparately affects

minority voters nor deprives minority voters (or anyone) of equal opportunity to

participate in the electoral process. Plaintiffs’ Section 2 argument essentially urges

the court to depart from statutory text and to apply a “discriminatory results” test

where it is merely necessary to show some statistical disparity without any evidence

of a causal connection between the challenged electoral mechanism and such

disparity.

1. To date, the Supreme Court has addressed the Section 2 standard only

in the context of vote dilution cases such as those brought in the wake of legislative

redistricting. See, e.g., Bartlett v. Strickland, 556 U.S. 1 (2009); Abrams v. Johnson,


19

521 U.S. 74, 90 (1997) (“Our decision in [Gingles] set out the basic framework for

establishing a vote dilution claim against at-large, multimember districts[.]”). In that

context, the Court invoked the so-called “Senate factors”: nine factors listed in the

Senate report on amended Section 2 intended to help courts evaluate claims of vote

dilution under the results test. S. Rep. No. 97-417, at 28–29 (1982); see also Andrew

P. Miller & Mark A. Packman, Amended Section 2 of the Voting Rights Act: What

Is the Intent of the Results Test?, 36 Emory L.J. 1, 15–16 (1987). As is fitting for

analyzing bespoke legislative districts, the Court stated that the Section 2 inquiry for

vote dilution claims is “‘an intensely local appraisal of the design and impact’ of the

contested electoral mechanisms.” Thornburg v. Gingles, 478 U.S. 30, 79 (1986)

(quoting Rogers v. Lodge, 458 U.S. 613, 622 (1982)).

This court has also applied the Gingles “Senate factors” in multiple Section 2

voter dilution cases. See United States v. Marengo Cty. Comm’n, 731 F.2d 1546,

1556 (11th Cir. 1984) (“We therefore hold that the amended version of section 2 was

intended to apply to the problem of vote dilution that this case presents.”); United

States v. Dallas Cty. Comm’n, 739 F.2d 1529, 1532 (11th Cir. 1984) (“This is a vote

dilution case” and “[c]onsequently the factors relevant in considering a vote dilution

claim under amended section 2 were relevant in the period after Bolden but before

the amendment[.]”); see also Johnson v. Governor of State of Fla., 405 F.3d 1214,

1237 (11th Cir. 2005) (“the subsection (b) language [of VRA Section 2] reflects


20

vote-dilution rhetoric from pre-Bolden Supreme Court cases.”) (emphasis added);

Nipper v. Smith, 39 F.3d 1494, 1510 (11th Cir. 1994) (“To prevail on a claim of vote

dilution under section 2, plaintiffs generally must meet certain threshold

requirements that the Supreme Court first identified in Gingles.”).

2. This case, however, is neither a redistricting case nor a vote dilution

case; it is, rather, an abridgement case, for which the Senate factors are particularly

ill-suited. For example, “the use of overt or subtle racial appeals in political

campaigns[,]” id. at 45, has no bearing on whether a particular electoral regulation

itself prevents minorities from voting. That is likely why the Frank court described

the Senate Factors as “unhelpful,” 768 F.3d at 754, and why the Sixth and Ninth

Circuits declined to apply them when plaintiffs failed to make a threshold showing

of discriminatory result. Ohio Democratic Party v. Husted, 834 F.3d 620, 640 (6th

Cir. 2016); Gonzalez v. Arizona, 677 F.3d 383, 407 (9th Cir. 2012) (en banc), aff’d

on other grounds sub nom. Arizona v. InterTribal Council of Ariz., Inc., 133 S. Ct.

2247 (2013).

In Frank, the Seventh Circuit first observed that Section 2 imposes not “an

equal-outcome command” (which would “sweep[] away almost all registration and

voting rules”) but “an equal-treatment requirement”—because that “is how it reads.”

768 F.3d at 754. Wisconsin’s voter ID law posed no problems because “in

Wisconsin everyone has the same opportunity to get a qualifying photo ID.” Id. at


21

755. There is no Section 2 violation merely because some groups “are less likely to

use that opportunity.” Id. at 753 (emphasis omitted).

Similarly, in Gonzalez v. Arizona, 677 F.3d 383, 405 (9th Cir. 2012) (en banc),

that court said that “a § 2 challenge based purely on a showing of some relevant

statistical disparity between minorities and whites, without any evidence that the

challenged voting qualification causes that disparity, will be rejected.” Id. at 405

(quotation marks and citation omitted). Despite “evidence of Arizona’s general

history of discrimination against Latinos[,]” that court concluded plaintiffs failed to

adduce “evidence that Latinos’ ability or inability to obtain or possess identification

for voting purposes . . . resulted in Latinos having less opportunity to participate in

the political process . . . .” Id. at 407.

And while in N.C. State Conf. of the NAACP v. McCrory, 831 F.3d 204, 223

(4th Cir. 2016), the Fourth Circuit found Section 2 liability based on the history of

the bill at issue, id. at 223, in Lee v. Virginia State Board of Elections, 843 F.3d 592,

600 (4th Cir. 2016), it rejected Section 2 liability based on “disparity in the rates at

which different groups possess acceptable identification” where such bill-specific

history was lacking. Id. at 600. Lee quoted McCrory for the proposition that “‘it

cannot be that states must forever tip-toe around certain voting provisions’ that

would have more effect on the voting patterns of one group than another.” Id. at 601

(quoting McCrory, 831 F.3d at 241). The North Carolina law invalidated in


22

McCrory, the court said, represented disparate opportunity to vote in that it targeted

Black voters with “almost surgical precision.” 831 F.3d at 214. In contrast, the

plaintiffs in Lee “simply failed to provide evidence that members of the protected

class have less of an opportunity than others to participate in the political process.”

Lee, 843 F.3d at 600. “[D]isparate inconveniences that voters face” are not the same

as “the denial or abridgment of the right to vote” required for an actionable Section

2 claim. Id. at 601.

Accordingly, Lee upheld Virginia’s voter ID law, which (like Alabama)

provides a free photo ID without additional documentation and which (like Alabama

and multiple other states), permits provisional ballots that may be validated later. As

such, “[a] complex § 2 analysis is not necessary to resolve this issue because the

plaintiffs have simply failed to provide evidence that members of the protected class

have less of an opportunity than others to participate in the political process.” Id. at

600.

3. Plaintiffs, however, urge this Court to follow the interpretation adopted

by the Fifth Circuit in Veasey, which says that plaintiffs need only show rational

speculation that the law might potentially impact minorities in some way to make

out a Section 2 claim. Veasey, 830 F.3d at 302. That standard could potentially yield

results where voter ID laws and other electoral mechanisms may validly operate in

some States but not others, depending not only on the ebb and flow of an infinite


23

array of incidental factors, but also on how much value different judges attribute to

indirect evidence of impact. Crawford, 553 U.S. at 208 (Scalia, J., concurring)

(warning this sort of “individual-focused approach” would almost certainly lead to

“detailed judicial supervision of the election process[, which] would flout the

Constitution’s express commitment of the task to the States.”).

As the Seventh Circuit observed in Frank, “any procedural step filters out

some potential voters.” 768 F.3d at 749. Yet such unfortunate and incidental

“filtering” in no way “disfranchises” voters “even though states could make things

easier by, say, allowing everyone to register or vote from a computer or smartphone

without travel or standing in line.” Id. If, to make out a Section 2 challenge, plaintiffs

need only show that a new regulation makes voting less convenient for the poor, and

that minorities are disproportionately poor as a result of historical discrimination,

States would be chilled from attempting any modicum of electoral reform.

B. Alabama’s Photo ID Law does not violate VRA Section 2

Here, the district court properly concluded that “[m]inorities do not have less

opportunity to vote under Alabama’s Photo ID law, because everyone has the same

opportunity to obtain an ID.” 7 App. 247. Again, Alabama’s Photo ID Law permits

multiple types of acceptable photo IDs (including student IDs, military IDs, and

government employee IDs) and permits voters to obtain a photo ID at no cost in


24

various ways, including by swearing to their identity when the Secretary of State’s

mobile unit is in town. Ala. Code § 17-9-30(a).

Nor, again, did the Alabama legislature enact the Photo ID Law with

discriminatory intent. Multiple courts, including the Supreme Court, have

recognized the strong public justifications for voter ID laws, and here Alabama even

proved the existence of voter fraud. This court has recognized in the context of a

Section 2 voter dilution claim that “[u]nder an intent test, a strong state policy in

favor of [the challenged election practice], for reasons other than race, is evidence

that the [the challenged election practice] does not have a discriminatory intent.”

United States v. Marengo Cty. Comm’n, 731 F.2d 1546, 1571 (11th Cir. 1984).

In short, the text of Section 2 simply does not support Plaintiffs’ argument.

The Court should reject that argument in favor of the maxim that “[c]ommon sense,

as well as constitutional law, compels the conclusion that government must play an

active role in structuring elections[.]” Burdick v. Takushi, 504 U.S. 428, 433 (1992).

Alabama is playing just such an active role here, but its Photo ID Law gives all voters

the same opportunity to obtain photo ID and vote. Accordingly, Plaintiffs’ Section

2 claim must fail.


25

CONCLUSION

The district court’s judgment should be affirmed.

Respectfully submitted,

Office of the Attorney General

302 West Washington Street

IGCS 5th Floor

Indianapolis, Indiana 46204

(317) 232-6255

(317) 232-7979

[email protected]


CURTIS T. HILL, JR.

Attorney General of Indiana

/s/ Thomas M. Fisher

Thomas M. Fisher

Solicitor General

Matthew R. Elliott

Lara Langeneckert

Julia C. Payne

Deputy Attorneys General

(Additional counsel on following page)


26

ADDITIONAL COUNSEL

LESLIE RUTLEDGE

Arkansas Attorney General

323 Center St.

Little Rock, AR 72201

CYNTHIA H. COFFMAN

Colorado Attorney General

1300 Broadway

Denver, CO 80203

LAWRENCE G. WASDEN

Idaho Attorney General

P.O. Box 83720

Boise, Idaho 83720-0010

DEREK SCHMIDT

Kansas Attorney General

20 SW 10th Ave., 2nd Floor

Topeka, KS 66612

JEFF LANDRY

Louisiana Attorney General

P.O. Box 94005

Baton Rouge, LA 70084-9005

BILL SCHUETTE

Michigan Attorney General

P.O. Box 30212

Lansing, Michigan 48909

WAYNE STENEHJEM

North Dakota Attorney General

600 East Boulevard Avenue

Department 125

Bismark, ND 58505-0040

MIKE HUNTER

Oklahoma Attorney General

313 N.E. 21st Street

Oklahoma City, OK 73105

ALAN WILSON

South Carolina Attorney General

P.O. Box 11549

Columbia, S.C. 29211

KEN PAXTON

Texas Attorney General

P.O. Box 12548

Austin, TX 78711-2548


Dated: April 6, 2018


27

CERTIFICATE OF SERVICE

I hereby certify that on April 6, 2018, I filed the foregoing document

electronically via the Court’s CM/ECF system. Notice of this filing will be sent by

e-mail to all parties by operation of the Court’s electronic filing system. Parties may

access this filing through the Court’s CM/ECF System. On the same date, seven

copies of the brief were dispatched for delivery to the Clerk’s Office of the United

States Court of Appeals for the Eleventh Circuit by third-party commercial carrier

for overnight delivery at the following address:

David J. Smith

Clerk of the Court

U.S. Court of Appeals for the 11th Circuit

56 Forsyth Street NW

Atlanta, Georgia 30303


Thomas M. Fisher


28

CERTIFICATE OF COMPLIANCE

This brief complies with: (1) the type-volume limitation of Federal Rules of

Appellate Procedure 29(d) and 32(a)(7)(B)(i) because it contains 5,894 words,

excluding the parts of the brief exempted by Fed. R. App. 32(7)(f) and 11th Cir.

Local R. 32-4; and (2) the typeface requirements of Rule 32(a)(5) and the type style

requirements of Rule 32(a)(6) because it has been prepared in a proportionally

spaced typeface (14-point Times New Roman) using Microsoft Word (the same

program used to calculate the word count).


Thomas M. Fisher

Dated: April 6, 2018


no. 18-10151 · northern district of alabama, no. 2:15-cv-02193-lsc brief of the states of indiana,...

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